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Although the settlement of the NFL lockout is being widely reported as a victory for the locked out referees and football fans in general, a closer examination of the settlement makes it appear that the NFL may have bested the union after all, the 112-5 vote in favor of the new agreement notwithstanding.

Rather than a situation where the NFL gave into the referees after being embarrassed by the incompetence of the replacement officials, it looks like the existing referees were willing to sell out their future colleagues in exchange for job security over the next eight years.

The lockout was never about the compensation received by the officials, and it was only secondarily about the lucrative pension rights that referees had under the previous collective bargaining agreement. What the lockout was about was the NFL’s desire to regain control over the hiring, firing, and deployment of officials, something that it had essentially bargained away under previous agreements.

The NFL has long been unique among North American team sports leagues in its reliance on part-time officials. Most of the current officials have full-time jobs, so their weekend officiating activities effectively give each official a lucrative second job. Under the previous agreement, the NFL was restricted in the number of officials it could hire—it was essentially limited to hiring 17 officiating crews, which meant that in a full week of games, there was only one additional group of officials to spell the other 16 crews.

Moreover, the previous collective bargaining agreement prevented the NFL from hiring full-time officials, and made it extremely difficult to dismiss current officials with which it was dissatisfied. For all practical purposes, the league’s referees, once hired, were able to decide when and if they would step down as officials. In reality, the NFL had very little control over its officials. That it set out to change when the previous collective bargaining agreement expired.

What the NFL was really after this time around was the right to hire full-time officials and to have a supply of back-up officials that could be substituted for regular officials whose performance was not satisfactory to the NFL. In the long run, the league wants to have the same ability to dismiss officials that it has to dismiss players and other NFL employees whose performance is viewed as subpar.

To try to wrest such concessions from the NFLRA, the referee union, the NFL launched an attack on the referees’ lucrative pension plan, proposing that the league’s pension contribution be reduced by 60% and that the traditional pension be converted into a 401(k) plan, which would put the long-term risk of financial viability on the shoulders of the union members.

It appears that the NFL’s real plan was to secure greater flexibility in hiring and firing officials by threatening the economic pocketbooks of existing officials. At some point, it expected the officials to make concessions regarding the hiring of additional referees in exchange for the league’s dropping or modifying its efforts to restrict the retirement benefits.

It also appears that the strategy worked.

In exchange for a slight increase in pay and the promise that their pensions will not be altered until after 2016, the referees agreed to a number of changes in the way in which future officials will be hired.

Although they initially demanded the right to hire even more back-up officials, the NFL will beginning in 2013 have the right to hire three additional teams of back-up officials who can be used to substitute for the regular officials. (Other reports suggest that the NFL will ultimately have the right to employ as many additional referees as it desires.) Although the NFL initially demanded that the new officials’ compensation come out of the pool set aside for existing officials, they “compromised” and will now pay the additional officials out of other funds.

Also, beginning in 2013, the NFL will have the right to hire new officials on a full-time basis. This is a major concession on the part of the NFLRA and will almost surely spell the demise of the part-time NFL official in the long run. By the 2020’s, the notion that the NFL once had part-time officials will likely seem as nostalgic as recollections that the players used to wear leather helmets.

By signing an eight-year contract, the existing referees basically protected their part-time jobs for the remainder of their careers. However, even the current referees lost on the pension issue. Beginning next year, all new officials will receive contributions to a 401(k)-like plan, and after 2016, all NFL referee pensions will be so structured. Referees who reach the 20-year mark in terms of experience before 2016 will lose their current pension rights once they pass that mark.

Apparently, once it became apparent that even the fiasco at the end of the Packers-Seahawks name was not going to induce the NFL to terminate its lockout, the referees union decided to take the best deal that it could.

It’s a familiar maxim that when the NFL goes to court, it always loses. But when it negotiates a settlement outside of court, it always wins. Chalk up another victory for the NFL.

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One Response to “Did the NFL Referees Throw in the Towel Too Quickly?”

This is a very interesting analysis. But why isn’t this also a win for the current NFL referees as well as future referees who will be employed by the NFL, employment that didn’t exist prior to the new CBA? All things considered, I think this is a win-win for both sides, particularly because it’s quite speculative whether the NFL would have lost any litigation brought by the NFL referees (under current law taking the necessary steps to extinguish the non-statutory labor exemption and prevailing in antitrust litigation would be difficult hurdles), or that the current and future referees would be better off pursuant to the terms of settled litigation rather than the new CBA. Moreover, the integrity of the game can be better maintained, which benefits all concerned (including fans), if the NFL has the power to fire incompetent referees. It’s very important to avoid a repeat of the horrible officiating that occurred during the three games of the NFL season.